An administrative law judge (ALJ) for the Worker's Compensation Division of the
Department of Workforce Development issued a decision in this matter. A timely petition
for review was filed.

The commission has considered the petition and the positions of the parties, and it has
reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees
with the decision of the ALJ, and it adopts the findings and order in that decision as its
own.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed: April 28, 1998 lutzda.wsd : 175 : 7 ND § 10.3

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer contends in its petition for commission review that the administrative law
judge erred in determining that further travel and treatment with Dr. Benedett in
Springfield, Missouri is reasonable and necessary to cure and relieve the applicant from
the results of his work injury, and that the employer shall be obligated to pay for them.
The employer objects to the applicant traveling to Missouri for eye care which is not
within the specialty of Dr. Benedett and contends that such examinations and their
associated expense are neither reasonable nor necessary. The applicant suffered a
work-related injury to his right eye on September 7, 1988 while working for the employer.
The applicant was treated in part by Dr. Benedett, who performed surgery on the
applicant's eye in 1988. Dr. Benedett relocated his medical practice to Springfield,
Missouri, and since that time the applicant has traveled to Missouri on occasion to see
Dr. Benedett.

The limited compromise agreement entered into by the parties on January 6, 1994
provides in part that the only claim to remain open during the statutory period is any
claim the applicant may make for examination and future treatment of his injured eye which
may be necessary for those injuries sustained on September 7, 1988, which shall remain
open without limitation under the Worker's Compensation Act. The compromise agreement
provides further that with regard to future medical examinations and treatment, the
employer agrees reasonable choice of practitioner shall include but not be limited to the
applicant's prior and current practitioners. The employer agreed that it shall pay for the
reasonable expense of travel to obtain examination and treatment including but not limited
to the applicant's prior and current practitioners.

There is also evidence of a letter dated December 21, 1993 prior to the limited
compromise agreement from the applicant's attorney to the employer's attorney which states
in part:

"That with regard to future medicals please inform the applicant immediately if
the employer has a problem with the applicant seeing Dr. Benedett on occasion in Missouri
as this is to be a condition of the settlement with respect to future medical
expenses".

The applicant's attorney also informed the employer's attorney that the applicant
desires to be reimbursed for his travel expenses and that since Dr. Benedett was the
applicant's initial treating physician and had been seeing the applicant on a yearly basis
he did not think this request was unreasonable. The employer did not respond to the letter
dated December 21, 1993 to object or indicate that there was a problem with the applicant
seeing Dr. Benedett as a condition of the settlement. Also, included in the documents
submitted into evidence is a record that the employer paid the applicant for his mileage
and other expenses, as well as his examination with Dr. Benedett in Missouri in May 1994
subsequent to the limited compromise agreement.

However, the employer now objects to the payment for the applicant's treatment with Dr.
Benedett in Missouri and contends that such treatment is not reasonable or necessary. The
employer contends that the applicant could see Dr. Willis, a local ophthalmologist, who
specializes in medicine and surgery for the cornea and external eye. The employer states
that Dr. Benedett's treatment does not relate to the necessity or decision concerning any
future surgery for the cornea and in the past the applicant did not see Dr. Benedett for
that purpose but rather was referred to Dr. Willis. The employer contends that there is no
need to travel to Missouri yearly for an examination when the physician in question has
stated that there is no change that he can accomplish for the applicant's eye condition or
complaints.

However, it was not established that the limited compromise agreement was based upon
any fraud or mistake. The employer was informed that the applicant intended to include
treatment with Dr. Benedett, on occasion in Missouri, as a term of the limited compromise
agreement for future medical expenses. The employer did not respond and indicate that it
had any problem with this arrangement prior to entering into the compromise agreement in
January 1994. Further, the agreement itself specifically provides that the employer agrees
to a reasonable choice of practitioners which shall include but not be limited to the
applicant's prior and current practitioners which would include Dr. Benedett, and that the
employer agreed to pay the reasonable expense of travel to obtain such examination and
treatment.

The employer voluntarily entered into the agreement with the knowledge that such
expenses could include trips to see Dr. Benedett in Missouri on occasion. Dr. Benedett
treated the applicant and performed surgery and it does not seem unreasonable that the
applicant would want to follow up with him on occasion. Based on the language of the
limited compromise agreement, as well as the letter from the applicant's attorney to the
employer's attorney on December 21, 1993, the parties clearly agreed that the applicant
would retain the right to obtain medical treatment from prior practitioners including Dr.
Benedett, and that such medical expense would include a trip to Missouri on occasion for
such treatment. However, the commission also agrees with the administrative law judge that
the applicant has confidence in the skills of Dr. Benedett, and that every effort should
be made to make sure those skills are available to him, however the treatment and the
travel to Springfield, Missouri, must be within the bounds of reasonableness. The
administrative law judge appropriately noted that should the treatment and/or travel ever
exceed the bounds of reasonableness then the department may wish to review the matter
again. However, based on the evidence presented the administrative law judge appropriately
held that further travel and treatment with Dr. Benedett in Springfield, Missouri, is
reasonable and necessary to cure and relieve the applicant from the results of his work
injury and that the employer shall be obligated to pay for them.